Dealing with Institutional Cover-up

Tim Ambler

Introduction

Malpractice, ranges from trivial mistakes to serious and deliberate long-term wrong-doing, is inevitably part of any public service. On the upside we all learn from what went wrong. The natural inclination of those in charge, however, is to conceal it. Failure is not penalised and no one learns from it. Public service is below where it should be.Millions are wasted by UK public services in cover-up but it is not just a financial matter: in child abuse, the NHS and corruption lives are ruined. In policing, the use of excessive force can be seen as corrupt and, if routine, “institutional”. “Institutional cover-up” refers generally to organizations where cover-up has become endemic, the South Yorkshire Police (SYP) from 1984 to 2016 (Orgreave, Hillsborough and Rotherham) is the most flagrant example. Hillsborough alone accounts for over £116M in legal costs so far with no costs to those who misrepresented the evidence.

This paper uses the SYP as a case study of institutional cover-up and analyses the reasons for it and why the most prominent remedy, protection for whistleblowers, cannot, and will not, work without more radical changes. In the UK public services, cover-up is a “win-win” for those in charge: top management continues unaffected while the cover-up is taking place and then retires on full pension, payment of contract and honours if the cover-up is exposed. The longer the cover-up continues, the greater each of those “wins”. We will never eliminate it but substantially to reduce it, and to gain the learning potentially available therefrom, we can change the change the expected outcomes for top management to make the penalties fit thecover-up. The paper concludes with six action points for government to redress the balance from cover-up to transparency.

This paper covers the following sections:

Institutional cover-up

The South Yorkshire police

Hillsborough

Sir Norman Bettison

Whistleblowing

Conclusions

Action points

Institutional cover up

Although this paper mostly focuses on institutional cover-up in UK public services, much applies more widely such as the BBC, and multinational commercial companies. Jimmy Savile enjoyed institutional cover-up at the BBC [1] as did Catholic clergy in the USA and Ireland. In the UK health service, it was not just Mid Stafford, about 20 percent of all NHS hospitals may be engaged in institutional cover up. [2] That is one reason their legal bills are so high.

The Metropolitan Police have long been accused of corruption and have, at least overtly, taken steps to deal with that. But even in 2016 there are fresh allegations, for example the Nigerian politician fraud case, about high-level cover-up. [3]

The 2015 HM Inspector of Constabulary report [4] into corruption barely mentions cover-up at all but the closest it comes is interesting:

“2.44. When corruption is uncovered there is a tendency within organisations, including the police service, to suggest or imply that the problem is one that is confined to a few rogue members or what are sometimes referred as ‘bad apples’. However, the history of policing has too many examples of institutionalised corruption for this view to carry much credence. Morever [sic], the notion of ‘bad apples’ narrows the scope of attention, often directing concern away from others and implies that, barring the individual ‘bad apples’, everything in the organisation is ethically sound. The literature suggests that this is rarely the case and that maintaining such a view is damaging to the health of the police service.”

Apart from that, the HMIC report seems wholly concerned with corruption at junior levels, e.g. bribery, as distinct from the big picture, i.e. misdemeanors and cover-ups by senior officers.

The Appendix lists 49 means that senior public servants can employ to cover-up malpractice and they are not all, e.g. releasing the news when media are pre-occupied elsewhere.

Is cover-up more damaging than crime? Each individual crime may be more serious than hiding it but if cover-up means that such crimes continue then we should be dealing with cover-ups even more vigorously than with the original crimes. Cover-up arises when those who should be exposing and punishing crime, instead elect to conceal it, usually to protect the reputation of the institution. “Institutional cover-up” is when it has become endemic across time and all ranks of senior management. It arises when these senior management believe they owe more loyalty to their own organization than the public.

When the top management are found out, or retire, or are promoted elsewhere, their subordinates, trained in the cover-up culture, step into their shoes. Covering up is seen as “normal”.

Of course a major problem is determining whether particular public service units, or managers, have integrity or not. According to the OECD “Corruption prevention systems are some of the least understood and infrequently evaluated programmes in contemporary government.” [5] Their 2005 guide to assessing corruption is a fine academic work but any practicing manager reading it would soon lose the will to live. Integrity is indeed hard to assess.

The UK police have a “code of ethics” [6] and the HMIC 2015 report commented favourably on the level of implementation.

“7.46. Most forces conduct a vetting check before promotion is confirmed. Some forces use all the information held to help assess the integrity of an individual before he receives training in confidential tactics, promotion or transfers. HMIC considers that these forces are ensuring that the force’s ethical principles are at the forefront of selection and transfer processes, helping it better serve and protect the public and also protecting its reputation and operational security.”

That is good but the idea that the police are there to “better serve and protect the public” is actually missing from the Standards of Professional Behaviour themselves wherein they have to act with (Item 2) only with “self-control and tolerance” towards the general public. Good of them to put up with us! In the context of institutional cover-up, that attitude should be seen alongside a far less equivocal Item

“9. Conduct: I will behave in a manner, whether on or off duty, which does not bring discredit on the police service or undermine public confidence in policing.”

That could be seen as an invitation to institutional cover-up.

South Yorkshire Police Case Study

The South Yorkshire police (SYP) provide the classic example. The sexual exploitation of over 1,400 children in Rotherham was covered up by, inter alia, social services and the SYP to the point where they could be considered complicit. Shaun Wright, initially Rotherham’s Director Children's Services for five years, was also member of the Police Authority and latterly the SYP Police and Crime Commissioner. He knew about the problem for nine years before public outrage, following the Jay Report, forced his resignation in September 2014. He departed accepting no blame: he merely considered that his continuing was a “distraction”. Note that it is well-nigh impossible to sack a PCC for incompetence.

No disciplinary action was taken against any of the SYP. Instead, in August 2014, the Chief Constable, David Crompton, issued an anodyne statement saying “SYP is currently conducting a number of historic investigations which relate to the period covered by the report. Whitehall are complex, involving multiple suspects and multiple victims and at this stage it would be inappropriate to give further detail about these inquiries.” Of course, unending investigations are a useful way of keeping things covered up. Having a public services investigate its own cover-up, or pretend to do so, serves no useful purpose and extends the cover-up. Investigating cousinly services, e.g. other police forces, is little better. See Action point 5 below.

The SYP were also criticised when Sir Cliff Richard’s home was searched in August 2014 in connection with alleged child abuse. Sir Cliff was out of the country but SYP provided the BBC with TV coverage. Then SYP Chief Constable David Crompton, presumably in a cover-up for the lack of judgement in bringing in the cameras, said that the investigation into the veteran entertainer had "increased significantly in size" and involved "more than one allegation".[7] Mr Crompton said the "expanding nature" of the investigation meant he could not give a date when it would be concluded: the SYP “won’t be providing a running commentary on the investigation. The inquiry continues and inquiries are ongoing”. Needless to say, SYP, under current management, will never announce the conclusion of all these inquiries nor the lack of any substantive evidence in the first place.

Two earlier cover-ups by the SYP, the “Battle of Orgreave” following the 1984 miners’ strike, and the “rhino whip affair” (1963) indicate how endemic covering up can be. In the latter case, three burglary suspects were beaten to obtain confessions. Detectives said such assaults were encouraged by senior officers and that evidence was regularly planted on suspects. The ensuing tribunal condemned the entire police leadership and found that senior officers were covering up the truth. The Chief Constable and three other top brass were, at least on that occasion, suspended.

The government is still being asked for a major investigation into their methods during the 1984 miners’ strike. In 2012 a BBC documentary alleged that the SYP colluded in inventing court evidence to charge miners wrongly over picket-line clashes. Following the Hillsborough 2016 outcome, efforts are being made to review Orgreave.

When the cases originally came to court, all were abandoned after it became clear that evidence provided by police was unreliable. The SYP paid £425,000 in compensation to 39 pickets in out-of-court settlements.

Hillsborough

Following the Hillsborough 1989 disaster, the senior, but newly appointed, SYP officer, Chief Superintendent David Duckenfield was held responsible and was suspended on full pay. Lord Justice Taylor’s (1990) report is indicative. He described senior SYP officers as "defensive and evasive witnesses" who refused to accept any responsibility for error.

“In all some 65 police officers gave oral evidence at the Inquiry. Sadly I must report that for the most part the quality of their evidence was in inverse proportion to their rank.”

“It is a matter of regret that at the hearing, and in their submissions, the South Yorkshire Police were not prepared to concede they were in any respect at fault in what occurred. ... [T]he police case was to blame the fans for being late and drunk, and to blame the Club for failing to monitor the pens. ... Such an unrealistic approach gives cause for anxiety as to whether lessons have been learnt. It would have been more seemly and encouraging for the future if responsibility had been faced.”

Following the Taylor Report, Duckenfield retired to Dorset in 1991, on full pension in 1991. Lying to a Lord Justice, as in 2015 he admitted he did, was no crime in the SYP.

Peter Wright (no relation) was SYP Chief Constable during both the Orgreave and Hillsborough attempted cover-ups. “In August 1989, on the day the Taylor report was published, Wright apologised for his force’s role in the catastrophe and offered to resign; he felt the report’s criticism personally and painfully.

Announcing his retirement the following year, however, his mood had changed somewhat. He left, he wrote in a letter to The Times, with a sense of injustice that police were shouldering so much of the blame. Officers found it “inexplicable”, he added, that although the Taylor report noted that fans had been under the influence of drink, it had concluded that this had had no effect on the “terrible outcome”.”[8]

SYP have form on apologising and then withdrawing it. David Crompton did the same thing and thereby delayed the 2016 inquest finding by two years at a cover-up cost of £14M to the taxpayer. The SYP legal cost would otherwise have been £11M. [9] The total costs to the taxpayer over the 27 years amounts to more than £116M.[10]

Finally one does have to wonder about the efficacy of HM Inspector of Constabulary which investigated SYP and reported in November 2014: “The chief constable and deputy chief constable have shown strong and clear leadership in introducing a culture of positive ethical behaviour and challenge of unacceptable behaviour at all levels across the force.”[11] The SYP was not just given a clean sheet but a glowing ethical health report just a few months before the Inquest exposed the reverse.

Sir Norman Bettison

But the darkest hand in all this was probably neither of the two Chief Constables involved in the cover-up but Norman Bettison, or so some allege. Born in Rotherham, he spent his formative years with the SYP and moved on to be Chief Constable of Merseyside and then of West Yorkshire. His record shows an interesting balance of cover-up “win-win”.

At the 2016 Hillsborough inquest, two business school students, John Barry and Mark Ellaby, stated that they had been in a pub with Mr Bettison after a class in October 1989 and heard Bettison describe his cover-up role: “Ellaby followed Barry on the witness stand and said: “I remember Mr Bettison saying that he’d just been seconded to an internal team in South Yorkshire Police who were tasked with making sure that South Yorkshire Police bore no blame for the Hillsborough disaster and it was all the fault of the drunken Liverpool supporters.” He said it was clear Bettison was being groomed for more senior leadership and was ambitious.”

Ellaby was certainly right on the latter matter. A chief inspector at the time of the disaster, Sir Norman Bettison denied claims that he made remarks in a Sheffield pub about SYP placing the blame on “drunken Liverpool fans” but remains the subject of an Independent Police Complaints Commission (IPCC) investigation of the question.

“The court heard after the Taylor Inquiry Mr Bettison attended a Police Federation meeting on October 1989, where MP Michael Shersby was present. He showed a video compilation to the meeting and later went to the Houses of Parliament to show the video to a group of MPs. The video compilation was said to have included some police footage, some material from the Taylor Inquiry and extracts from a video called ‘Planning for Disaster’.”

The video “contained elements of hooliganism to put what followed, he [Bettison] said, into context.” Yet there was no suggestion that hooliganism had played any part in the Hillsborough disaster.[12]

From 1993 - 98 Bettison was Assistant Chief Constable of West Yorkshire Police, to become Chief Constable of Merseyside until 2005. He left the police in January 2005 to become Chief Executive of Centrex, training and developing police forces at home and abroad until its closure in 2007 when he rejoined as Chief Constable of West Yorkshire Police. He attempted to secure a package to receive both a retirement pension from Merseyside and a salary from the new post; he threatened legal action but the claim was settled out of court.[13]

Bettison has received plenty of honours:

Bettison was made an Honorary Fellow of Liverpool John Moores University in 2004 but in April 2013, it was withdrawn. When handing out gongs in 2012, the Home Office could not have been aware of the concerns with Bettison.

In February 2008 an article in the Daily Mail drew attention to a long-running edit war of Bettison's Wikipedia page, and suggesting that Sir Norman Bettison took exception to being described as a "greedy, vain moron" on the online encyclopaedia, according to Police Review magazine. The then 52-year-old chief constable of West Yorkshire and favourite to succeed Sir Ian Blair as head of the Met, allegedly ordered employees to check for changes often.[14]

In October 2012 Bettison announced that he would retire in six months but actually left immediately after being accused in the House of Commons of Hillsborough cover-up. Merseyside Police Authority confirmed his full £83,000 pension, unless convicted of a criminal offence in relation to Hillsborough.[15]

At the same time, it appears that he actually resigned because "he faced possible dismissal over a last minute discussion with a police authority executive in which he allegedly sought to influence talks about his role in the Hillsborough scandal."[16] Dismissal would have been justified if it was shown that he had interfered with the “integrity of the complaints handling process."[17]

Bettison is also to be investigated by the Independent Police Complaints Commission over allegations that he was involved in the theft of a substantial quantity of precious metal on 11 August 1987.[18]

And if all that was not trouble enough, in July 2013 Bettison was referred to the IPCC by West Yorkshire Police and Crime Commissioner Mark Burns-Williamson in relation to alleged misconduct during the Macpherson Inquiry into the murder of Stephen Lawrence. Three documents were found, about which Burns-Williamson said:

"These documents raise significant concerns over the role of Sir Norman Bettison at the time he was Assistant Chief Constable of West Yorkshire Police in 1998 in commissioning a report to be prepared in the respect of a key witness appearing before the Macpherson Inquiry. This may suggest an attempt to intervene in the course of a public inquiry and influence the manner in which the testimony of a witness, who was due to present evidence before it, was received. I have today referred this to the Independent Police Complaints Commission.”[19]

One thing that stands out so far is the extent to which matters are referred to the IPCC and then forever disappear from view. It is almost as if the IPCC is the Independent Carpet under which embarrassing matters can safely be swept. If challenged they would doubtless respond that they cannot pre-empt what may become police proceedings but this is circular. We return to this topic in the conclusions.

Whistleblowing

The main challenge to cover-up has been from whistleblowers who have, often bravely, been prepared to publicise wrongdoing in their own organizations at considerable risk to their own careers. Everyone welcomes whistleblowers except in their own backyard.

The 2015 HMIC report stated:

“7.7. There was a difference in approach among forces as to how they protected staff who reported wrongdoing. Some forces considered them to be a form of police informant and put measures in place to protect their identities; others considered that, as it is the duty of staff to report wrongdoing, only moral support needed to be provided. Some officers and staff we spoke to told us that they did not have confidence that their anonimity [sic] would be protected if they reported wrongdoing and they feared adverse consequences as a result. While we acknowledge that it is not always possible to maintain the anonymity of a person reporting wrongdoing, we are concerned if some forces have not attempted to protect the identities of those who have not only given information in confidence, but have also suffered as a result.”

It is not only in the police that the difficulties for the whistleblower have not been thought through not least to ensure that whistleblowing, where it is needed, does take place. But we also have to protect public services from malicious or misguided whistleblowing.

Common ground is that the whistleblower needs a completely confidential and independent senior with whom to discuss the problem and determine if the matter is serious and needs to become a formal complaint or if it is a relatively trivial matter that can be resolved in other ways without compromising confidentiality. See Action points 3 and 4.

Conclusions

The outset of this paper suggested that institutional cover-up is a win-win from the perspective of those in charge of public services. It retains public confidence and support, and honours and promotion, for those conducting the cover-up. They have a case: for the police, for example, to be effective the public needs to trust them. And if the cover-up and any other malpractice is about to be exposed, the top managers can retire on full contractual redundancy terms and pension, minutes before legal proceedings begin. Institutional cover-up takes care of its own in exchange for the perpetrators giving more loyalty to the system than to the general public. And if the cover-up and any other malpractice is about to be exposed, the top managers can retire on full contractual redundancy terms and pension, minutes before legal proceedings begin.

HM Inspector of Constabulary was right to focus on the word “integrity” as that, along with courage, is really what this is about. Rather a 19th century point of view perhaps but the public services need to reward integrity and courage, not penalize them. For example integrity should be a, if not the, key determinant in deciding promotion and honours. Human Resource specialists have whole batteries of overt and psychological tests for integrity but their validity and practicality are open to question in this context. It would be simpler just to consider whether the individual would speak the truth, and act accordingly, when all around strongly endorse something else.

There were many good policemen in South Yorkshire but the penalties for whistleblowing outweighed the benefits. The Home Office should clearly have stepped in and sorted out Hillsborough and the Department for Children in Rotherham. They left them alone not because they were complicit in any cover-up but because Whitehall civil servants and Ministers are busy people seeking to keep problems off their desks.

That is unlikely to change but they could legislate against those accused of cover-up being their own investigators. How crazy was it to leave the police involvement in the Rotherham scandal to be investigated by the police force concerned? No surprise that the report never emerged and, under that management, never will. Having public services investigate their own institutional cover-ups, or even those of similar organizations, makes no sense, it simply feeds the cover-up. See Action 5 point below.

Finally we need to consider penalties for those found to have been implication in institutional cover-up. The public is offended by the current system of a rapid exit protecting full compensation for loss of office and pension rights. That continues because, under present law, it is the easiest, cheapest and quickest way of changing the management. Furthermore, misconduct, even when it exists can be hard to prove. Should the pension rights of a 40 year serving and otherwise exemplary manager really be stripped away because he or she momentarily turned a blind eye? And what if it was something that needed doing, or saying, even though it was technically wrong to do so?

The 2015 HMIC report recorded that:

“2.25. On 18 November 2014, the Home Secretary, announced a consultation on a package of measures designed to make the police disciplinary system more robust, independent and transparent in the short term until more fundamental changes can be implemented. The proposed measures were: a power for disciplinary hearing panels to remove or adjust the compensation payments due to chief officers on termination of their appointment, where a disciplinary finding is made against them; the introduction of legally-qualified chairs to conduct police disciplinary hearings.”

That certainly goes in the right direction but there are two concerns with it: institutional cover-up is not really a matter of “discipline” and it is too legalistic. Putting the reputation of the police ahead of their duty to the public could be argued by any lawyer to be justified by the new Ethics Code; it should be a matter of integrity not following a rule book. Such judgments should be considered by other people in practice, not technical lawyers.

In extreme cases, emoluments, pensions and honours should be removed, or reduced, but these will be rare. The penalty really should lie in being dragged before a tribunal of one’s peers, but from other public services, for the charges to be laid in public. The tribunal would determine how much, if any, reduction in honours and emolument should take place. This process would require parliamentary approval in order to supercede existing legislation and should be available to be invoked up to one year following a “rapid exit”. See Action point 6.

Action points

The Police and Crime Commissioners (and the equivalent chairmen in other public services) should each sign to say they have satisfied themselves from personal in-depth interview that the incoming Chief Constable/CEO is a person of sufficient integrity and courage and will ensure that whistleblowers (see below) are fully protected. Also that the Chief Constable/CEO will certify likewise through the next two layers of management.

The Police Code of Ethics is modified to make it clear that bringing “discredit on the police service or undermine public confidence in policing” is less important than its fundamental service to the public and its integrity and transparency in performing that.

Whistleblowers uncovering serious wrong-doing and cover-up should not be merely protected but rewarded. It is wishful thinking to imagine that their colleagues will welcome them back and therefore they need to be moved to new, better paid positions. The obvious places are the supervisory organizations such as IPCC, HMIC, Ofsted, Care Quality Commission etc. If necessary a change of sector or even identity may be appropriate: the key is that, where their concerns are justified, the whistleblower should benefit alongside society.

In line with the current codes of practice, those worried wrongly or by minor malpractice need confidential counselling so that the situation can be clarified without anyone being hurt. The HMIC report and others point to the lack of confidence in these systems by potential whistleblowers. Whilst it may not seem necessary to those in charge, the lack of trust suggests the point of counselling should be removed further from the line of management, e.g. Ofsted in the case of schools.

A malpractice allegation against a single public-facing official, such as a junior police officer, should certainly be investigated by the unit concerned but once the allegations go higher and/or wider they should be addressed by the inspecting body, e.g. Ofsted, IPCC or HMIC. They in turn should have to report within a year and not allow these things to drag over years as they now do. At the end of a year at the latest, the inspector should announce “no case to answer” or turn the file over to the Crown Prosecution Service. If the investigator is short-staffed, seconding hand-picked managers from the mainstream would be a useful opportunity to test integrity.

Parliament should enact a tribunal process under which peers, from other public services, should review in public any disquiet over the rapid exit of a senior public servant threatened with disclosure of misdemeanors, malpractice or cover-up. The tribunal should capable of being invoked up to one year following the departure of the senior public servant in question. It would be capable to recovering emoluments, pension rights and/or honours although that would be very rare. It is the threat that would be the penalty.

Appendix

49 ways to cover up public service malpractice

This Wikipedia list was compiled from famous cover-ups such as Watergate Scandal, Iran-Contra Affair, My Lai Massacre, Pentagon Papers, the cover-up of corruption in New York City under Boss Tweed and the tobacco industry cover-up of the health hazards of smoking. The methods in actual cover-ups tend to follow the general order of the list below.

Initial response to allegation

Flat denial

Convince the media to bury the story

Preemptively distribute false information

Claim that the "problem" is minimal

Claim faulty memory

Claim the accusations are half-truths

Claim the critic has no proof

Attack the critic's motive

Attack the critic's character

Withhold or tamper with evidence

Prevent the discovery of evidence

Destroy or alter the evidence

Make discovery of evidence difficult

Create misleading names of individuals and companies to hide funding

Lie or commit perjury

Block or delay investigations

Issue restraining orders

Claim executive privilege

Delayed response to allegation

Deny a restricted definition of wrongdoing (e.g. torture)

Limited hang out (i.e., confess to minor charges)

Use biased evidence as a defense

Claim that the critic's evidence is biased

Select a biased blue ribbon commission or "independent" inquiry

Intimidate participants, witnesses or whistleblowers

Bribe or buy out the critic

Generally intimidate the critic by following him or her, killing pets, etc.

3. Met police chief Sir Bernard Hogan-Howe to be grilled by MPs over claims Scotland Yard and CPS were involved in 'deliberate cover-up' of officers who 'took cash to leak inquiry details to help Nigerian politician go free'. The allegations of corruption were revealed by a whistle-blowing lawyer who was immediately prosecuted (but it was later dropped) for “forging the evidence”.David Rose and Martin Beckford for The Mail on Sunday, 13 February 2016

4. Integrity matters: An inspection of arrangements to ensure integrity and to provide the capability to tackle corruption in policing, HMIC, January 2015, ISBN: 978-1-78246-697-0, www.justiceinspectorates.gov.uk/hmic

6. Code of Ethics: A Code of Practice for the Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales, Presented to Parliament pursuant to Section 39A(5) of the Police Act 1996, as amended by Section 124 of the Anti-social Behaviour, Crime and Policing Act 2014, July 2014